The State of Illinois has approved Public Act 098-0961 (“the Act”), effective January 1, 2015, which amends Section 504 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) by providing a formulaic approach to calculating spousal maintenance awards in divorce cases. The formula is known as the Illinois maintenance guidelines. Under the Illinois maintenance guidelines, courts are now required to calculate maintenance awards based on a percentage of the parties’ incomes and the length of the parties’ marriage. The new maintenance guidelines call for a stricter and more rigid calculation of maintenance awards than the prior statutory framework.
Statutory Framework Prior to the Illinois Maintenance Guidelines
Prior to adoption of the Act, a trial court awarded maintenance based on the totality of the circumstances of the parties and after considering the following factors:
- the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance;
- the needs of each party;
- the present and future earning capacity of each party;
- any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
- the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
- the standard of living established during the marriage;
- the duration of the marriage;
- the age and the physical and emotional condition of both parties;
- the tax consequences of the property division upon the respective economic circumstances of the parties;
- contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
- any valid agreement of the parties; and
- any other factor that the court expressly finds to be just and equitable.
Under the prior statutory framework, a trial court determined if an award of maintenance was appropriate, and, if appropriate, how much the maintenance award would be based on the above enumerated factors. The prior framework did not provide a formula or any additional guidance for a trial court on how to calculate the amount or duration of the award.
When Does the Illinois Maintenance Guidelines Formula Apply?
As amended by the Act, the new Section 504 now requires a court to consider the above 12 enumerated factors as a starting point to determine if an award of maintenance is appropriate under the circumstances. If a court determines a maintenance award is appropriate, then the court shall apply the Illinois maintenance guidelines formula to determine the amount and duration of the award.
However, the new Section 504 also provides that a court may deviate form the Illinois maintenance guidelines and order non-guideline maintenance. The statute provides no instruction on when a trial court may deviate from the guidelines.
Further, the Illinois maintenance guidelines formula applies only when the combined gross income of the parties is less than $250,000 and no multiple family situation exists. And the Illinois maintenance guidelines formula applies only to maintenance payable after the date the parties’ marriage is dissolved (the formula does not apply to pre-decree orders).
Amount of the Award under the Illinois Maintenance Guidelines
As amended by the Act, the new Section 504 provides that the amount of a maintenance award “shall be calculated by taking 30% of the payor’s gross income minus 20% of the payee’s gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.” The following example explains how this formula is applied.
For example, if a payor’s gross income is $100,000 per year and a payee’s gross income is $50,000 per year, then the payor would have to pay $10,000 per year to the payee as and for maintenance. To arrive at this figure, first take 30% of the payor’s gross income and minus from that 20% of the payee’s gross income, which in this example results in $20,000 per year payable to the payee ($30,000 – $10,000 = $20,000). Next, determine whether the payee’s resulting gross income exceeds the 40% upper ceiling. In this example, the payee’s resulting gross income is $70,000 per year ($50,000 + $20,000 = $70,000), which is 47% of the combined gross income of the parties ($70,000 / $150,000 = .47). Since the payee’s resulting gross income exceeds the 40% upper ceiling, the upper ceiling dollar amount must be calculated to determine the maximum amount of maintenance allowed payable to the payee. In this example, the upper ceiling dollar amount is $60,000 ($150,000 x .40 = $60,000). Finally, to arrive at the amount the payor must pay to the payee to reach the upper ceiling dollar amount, subtract the payee’s gross income from the upper ceiling dollar amount, which in this example results in $10,000 per year payable to the payee as and for maintenance ($60,000 – $50,000 = $10,000).
Duration of the Award under the Illinois Maintenance Guidelines
As amended by the Act, the new Section 504 provides that the duration of the award “shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.” The following example explains how this formula is applied.
So, for example, if a marriage lasted 9 years and 364 days, then any maintenance award would have a duration of 4 years (9.99 x .40 = 4.0). However, if a marriage lasted 10 years and 0 days, then any maintenance award would have a duration of 6 years (10.0 x .60 = 6.0).
However, calculating the duration of a spousal maintenance award is problematic under the Illinois maintenance guidelines when the length of a marriage is exactly 5, 10, 15, or 20 years. As you can see, in those situations, the Illinois maintenance guidelines call for two inconsistent percentages to be multiplied by the length of the marriage. For example, if a marriage is dissolved on the 15 year anniversary, then the Illinois maintenance guidelines are not clear whether the length of the marriage is to be multiplied by .60 or .80.
Required Findings of Fact Under the Illinois Maintenance Guidelines
As amended by the Act, the new Section 504 now requires a court to make specific findings of fact in all cases involving the issue of maintenance. A court shall state its reasoning for awarding or not awarding maintenance and shall include references to each relevant factor (the relevant factors being the 12 factors enumerated above). And, if a court deviates from the otherwise applicable Illinois maintenance guidelines, then the court shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the Illinois maintenance guidelines and the reasoning for any variance from the Illinois maintenance guidelines.
Other Changes Made by the Act
In addition to the above, the Act makes several other amendments to Section 504. First, unless the parties otherwise agree, a court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order. However, in its discretion, a court may order unallocated maintenance and child support in any pre-dissolution temporary order. Second, if a court grants maintenance for a fixed period at the conclusion of a case commenced before the tenth anniversary of the marriage, the court may also designate the termination of the period during which this maintenance is to be paid as a “permanent termination”. The effect of this designation is that maintenance is barred after the ending date of the period during which maintenance is to be paid.
The Act also amends the definition of “net income”, as found in Section 505(a)(3) of the IMDMA, to the effect that “obligations pursuant to a court order for maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable” are now a valid deduction from the gross income of the child support obligor.
The Illinois maintenance guidelines are a landmark change to the statutory framework a court is to use when calculating a spousal maintenance award in a divorce case. Because of this, and because the statute has not been interpreted or clarified by the appellate courts, many questions remain unanswered, such as when and how a court is to apply the Illinois maintenance guidelines.
An excellent resource for quickly and accurately calculating the amount and duration of spousal maintenance awards under the Illinois maintenance guidelines is the Illinois Alimony Calculator.
This is more a question than comment, but if a divorce was filed or finished before Jan 1, 2015, does this law pertain?
Yes and no. If the marriage was dissolved prior to January 1, 2015, and the specific provision is considered substantive, then the provision does not apply. Otherwise, the provision applies. Remember, the maintenance statute was amended to include several new distinct provisions, e.g. the maintenance formula, the definition of “gross income”, the prohibition of unallocated support and maintenance, etc., which must be analyzed individually. If you would like more information on this topic, please read my recent post, Retroactive Application of the Illinois Maintenance Guidelines, wherein I discuss this topic in greater detail.
This is a great question that will most likely be the focus of litigation and receive appellate court review. Thanks for the comment!
When using this formula to determine maintenance, is the figure that is arrived at a fixed sum for the duration that maintenance is due or is it calculated on a recurrent basis (e.g., annually to account for changes in the gross incomes of both spouses)?
Although the statue is silent and there is no case law on this issue, it appears that, under the Illinois maintenance guidelines, the amount of a prior maintenance order is neither fixed nor subject to recalculation on a periodic basis. Under Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act, the maintenance amount may be modified at any time upon a showing of substantial change in circumstances by either spouse. That section provides a list of factors that a court must consider when deciding whether to modify the amount of a prior maintenance order. One of the factors to be considered is the increase or decrease in each spouse’s income since the prior maintenance order from which a modification is being sought. As such, it appears that if a substantial change in circumstances has been proven, then the amount of a prior maintenance order may be modified in accordance with the maintenance guidelines formula.
Thanks for the post!
Does this new law apply to maintenance rewards up for review or or does the old law apply prior to Jan 1 2015?
Based on the statutory framework and the popular belief in the legal community, a court is not bound to the Illinois maintenance guidelines during a review of a prior maintenance award. However, because this issue has not been decided by a court of review at this time, good faith argument can be made for both positions (that they do or do not apply). As such, legal counsel is recommended to advocate for or defend against any such claim that the Illinois maintenance guidelines do apply during a review of a prior maintenance award.
Thanks for the comment!
1. Does the new statute apply to cases where the income is greater than $250,000?
2. Does the new statute apply to cases handled through mediation?
3. Under the new statute, can permanent maintenance being awarded for marriages lasting fewer than 20 years if there are unusual/special circumstances?
4. Under the new statute, does maintenance automatically terminate upon retirement of the paying spouse?
To answer your questions in turn:
1. No. The Illinois maintenance guidelines only apply where the total gross income of the the parties is less than $250,000.00.
2. Only a court is “bound” by the Illinois maintenance guidelines. Mediation is a form of alternative dispute resolution where the parties work with a mediator to reach an agreement based on whatever they believe is in their best interests. That said, the Illinois maintenance guidelines will be a factor during mediation. However, mediation is not binding, and if an agreement cannot be reached between the parties, then court intervention is necessary, at which point the Illinois maintenance guidelines will be followed.
3. Yes. A court may deviate from the Illinois maintenance guidelines if the court makes a finding that the application of the guidelines would be inappropriate. A deviation can be either upward or downward. Furthermore, the popular belief in the legal community is that a deviation from the Illinois maintenance guidelines will be appropriate in most cases. Appellate court review is necessary to confirm or disaffirm this belief.
4. No. However, a maintenance order may be terminated upon a showing of a substantial change in circumstances. One such circumstance a court may consider is any change in the employment status of either party and whether the change has been made in good faith.
Thanks for the comment!